Terms & Conditions
1. Terms and Conditions Agreement
Topgolf International, Inc. and its subsidiaries (hereinafter referred to at times as "Topgolf", "Company" "we" or "us") welcome you to our websites (collectively, hereinafter referred to at times as the "Sites"). Below are the terms and conditions for use of the Sites (hereinafter referred to as "Terms and Conditions Agreement"). By using or accessing the Sites, you hereby agree to be bound by this Terms and Conditions Agreement. If you do not agree with this Terms and Conditions Agreement, discontinue or do not use the Sites. The terms and conditions contained herein are subject to change and can be modified at any time with notice to you. Be sure to review this Terms and Conditions Agreement periodically for updates, as your continued use of the Sites signifies your acceptance of any changed terms and conditions set forth in this Terms and Conditions Agreement.
PLEASE READ THIS TERMS AND CONDITIONS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION, INCLUDING THE BINDING ARBITRATION AGREEMENT , WHICH CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
2. Intellectual Property
The tradename TOPGOLF, the TOPGOLF SHIELD and other marks and logos are the intellectual property of Topgolf International, Inc. and its subsidiaries.
Our Sites and all of their contents (including, without limitation, articles, text, photographs, images, illustrations, graphics, video material, audio material, and software (collectively, the "Intellectual Property"), are protected by copyright, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The Intellectual Property is owned or controlled by Topgolf or the party credited as the provider of the intellectual property. Additionally, the Sites themselves are protected by copyright as a collective work and/or compilation.
Your use of the Sites does not create, and nothing contained in the Sites shall be construed as creating or conferring to you, by implication, estoppel, or otherwise, a license or any other rights in trademarks, service marks, copyrights or other intellectual property rights or any other rights of Topgolf or any third party. The Sites are provided free of charge and are for informational purposes only and do not create a business or professional services relationship between you and Topgolf.
No portion of the Sites may be reproduced, duplicated, copied, sold, or otherwise exploited for any commercial purpose that is not expressly permitted by Topgolf.
You may browse through the Sites and occasionally download small amounts of materials appearing on the Sites that are of personal interest to you for your personal, non-commercial use. You must keep intact all copyright, trademark and other notices contained in your personal copies. You may not reproduce or allow others to reproduce your personal copies of downloaded materials, nor may you make them available electronically. You may not save or archive a significant portion of the material appearing on the Sites. You may not attempt to alter or modify the content posted on the Sites. Except as expressly set forth in this paragraph, you may not copy, download, display, distribute, publish, enter into a database, display, perform, modify, create derivative works, transmit, post, decompile, reverse engineer, disassemble or in any way use any of our Intellectual Property or the Sites themselves.
3. Buying Memberships and Credits Online
Currently in select locations only, Topgolf offers customers the ability to purchase a lifetime membership or subscription membership ("Subscription Membership") and credits for use at such locations. To purchase a membership and/or credits online, you must provide to Topgolf your name, e-mail address and credit or check card (check card must bear the VISA® or MASTERCARD® logo) for the payment method that you will use to make the purchase (hereinafter referred to as your "Payment Card").
By requesting membership at Topgolf and by accepting the benefits of membership at Topgolf, you agree to the terms and conditions found in the Membership Agreement.
Subscription Membership: If you choose a Subscription Membership, you agree that as a condition of your continued membership at Topgolf you authorize Topgolf or its agent to charge your Payment Card the Membership fee (plus applicable taxes), in effect from time to time, on the renewal date of your membership, if you have enabled auto-renew and until your Subscription Membership is canceled, as set forth in the Membership Agreement.
Pending Charges: You also authorize Topgolf to place a pending charge to your Payment Card when you sign up for membership (for both lifetime membership and Subscription Membership), and prior to each subsequent periodic charge for Subscription Memberships. Pending charges are used to verify your billing address and the validity of your Payment Card, are temporary (typically 3 to 7 days in length) and will not be converted into an actual charge to you. Pending charges, while pending, will, however, reduce the available amount of credit on your Payment Card in the amount of $1 per pending charge.
Fees Relating to your Payment Card: You are solely responsible for any and all fees charged to your Payment Card by the issuer, bank or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees.
Expiration Date and Refusal of Charges to Your Payment Card: If your Payment Card reaches its original expiration date, your failure to cancel or disable the auto-renew feature on your Subscription Membership constitutes authorization for Topgolf to continue billing that Payment Card.
From time to time, Topgolf may avail itself of account updating services provided by the Payment Card industry, including, without limitation, VISA's Account Updater program or MasterCard's Automatic Billing Updater program. By subscribing to a Subscription Membership, you hereby agree and authorize Topgolf to update your Payment Card or similar account information and charge any updated Payment Card in accordance with the terms and conditions of such account updating programs.
4. Proper Use of Our Site
You may not use the Sites for any purpose that is unlawful or prohibited by this Terms and Conditions Agreement, or cause damage on or through the Sites. You agree that none of your communications with or through the Sites will violate any applicable local, state, national, international or other law. You further agree that none of your communications with or through the Sites will infringe upon the rights of any third party or contain defamatory, libelous, abusive or obscene material. You agree not to affect/interrupt or to attempt to affect/interrupt the operation of the Sites in any manner.
You agree to defend, indemnify, and hold Topgolf, its affiliates, officers, directors, employees, agents, licensors, business associates, and suppliers harmless from and against any actual or threatened claims, actions or demands, causes of action, damages, losses, expenses, liabilities and settlements including, without limitation, reasonable legal and accounting fees and costs of suit, resulting from, or alleged to result from, or arising out of or in connection with, your use of the Sites, including without limitation your use of the Sites in a manner that violates or is alleged to violate this Terms and Conditions Agreement or any applicable law.
5. Disclaimer of Warranty and Limitation of Liability
Topgolf does not guarantee the accuracy of information found on the Sites. Your reliance on information found on the Sites is at your own risk.
THE SITES, AND ALL THEIR CONTENTS, ARE PROVIDED TO YOU "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TOPGOLF, ITS AFFILIATES, LICENSORS, SUPPLIERS AND ANY OTHERS INVOLVED IN CREATING THE SITES AND/OR THEIR CONTENTS MAKE NO REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, DATA ACCURACY, SYSTEMS INTEGRATION, OR QUIET ENJOYMENT.
UNDER NO CIRCUMSTANCES WILL TOPGOLF, ITS AFFILIATES, LICENSORS, SUPPLIERS OR ANY OTHERS INVOLVED IN CREATING THE SITES AND/OR THEIR CONTENTS BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES RESULTING FROM ANY CIRCUMSTANCE INVOLVING THE SITES, THEIR FEATURES AND/OR THEIR CONTENT (INCLUDING BUT NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE OF THE SITES, LOST DATA, DELAY IN OPERATION OR TRANSMISSION, BREACH OF SECURITY, LINE FAILURE, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITES, OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT), EVEN TOPGOLF OR ANY SUCH OTHER PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE.
TOPGOLF, ITS AFFILIATES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS AND ANY OTHERS INVOLVED IN CREATING THE SITES AND/OR THEIR CONTENTS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE FEATURES OF OR INFORMATION AVAILABLE ON THE SITES IN TERMS OF THEIR TIMELINESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE ACCURATE AND TIMELY INFORMATION ON THE SITES, YOU SHOULD NOT ASSUME THAT THE INFORMATION PROVIDED IS ALWAYS UP TO DATE OR THAT THE SITES CONTAIN ALL THE RELEVANT INFORMATION AVAILABLE ABOUT OUR COMPANY. TOPGOLF UNDERTAKES NO OBLIGATION TO VERIFY OR MAINTAIN THE CORRECTNESS, ACCURACY, RELIABILITY OR CURRENCY OF SUCH INFORMATION.
Applicable law may not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations or exclusions may not apply to you. However, in no event shall the aggregate liability of Topgolf or any affiliate, licensor, supplier or any other party involved in creating the Sites and/or their contents, to you or any third party for damages, losses, and causes of action exceed the amount paid by you, if any, for accessing the Sites or $100, whichever is less. You agree to bring any and all actions within one year from the date the cause of action first occurred and that actions brought after this date will be forever barred.
6. Links to Other Websites
Our Sites may provide links to websites not operated by Topgolf. Access to any other websites linked to the Sites is at your own risk. Such links do not imply, nor should you infer, Topgolf's association, sponsorship, affiliation or endorsement of material on any other website, and Topgolf assumes no responsibility for third-party websites, including but not limited to any content contained on such websites. For example, Topgolf does not vouch for, or make any judgment or warranty with respect to, the accuracy, reliability or availability of the information or the goods or services offered on third-party websites, even if someone from Topgolf is quoted, leaves a comment, or our marketing or other materials make reference to that party's website.
Although Topgolf may open a new browser window when you click on a link to a third party's website, Topgolf does not guarantee that you will receive this alert when you leave the Sites. It is your responsibility to determine when you have left the Sites.
Unless otherwise set forth in a written agreement between you and Topgolf, you may link your website to the home page of our Sites, provided that you adhere to the following linking policy: (i) any link to Topgolf's Site(s) must be a text only link and clearly marked "Topgolf Website," (ii) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Topgolf's names and trademarks, (iii) the link must "point" to the URL www.topgolf.com and not to other pages within the Sites, (iv) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Topgolf, (v) when selected by a user, the link must display the Site(s) on full-screen and not within a "frame" on the linking Site(s), and (vi) Topgolf reserves the right to revoke its consent to the link at any time and in its sole discretion.
E-mail submissions over the Internet may not be secure. Please consider this fact before e-mailing any personal or confidential information.
8. Feedback and Submissions
Submission of any remarks, suggestions, material, information, ideas or other communications (each a "submission") to the Sites will be deemed to transfer to Topgolf all present and future ownership and intellectual property rights in such submission of every kind and nature everywhere. All such submissions by you are voluntary, and Topgolf has no obligation to treat such submissions as confidential or to compensate you for the submission. You agree that all such material, information and ideas are your own original works, and that they have not been published, publicly displayed, performed or transmitted in any manner whatsoever. In addition, you agree that you hereby waive all publicity rights and so-called "moral rights". You agree that Topgolf has the right, but not the obligation, to display and use your name, likeness and other personal information submitted by you with the submission. If any court determines that Topgolf does not retain exclusive ownership of any such submissions, then Topgolf retains a royalty free, exclusive, sublicensable (through multiple tiers) right and license to use, reproduce, cache, modify, display, publicly perform, transmit, adapt, publish, translate, create derivative works from and distribute the submissions throughout the universe in any medium and through any methods of distribution, transmission and display whether now known or hereafter devised.
Topgolf is not responsible for any submission on its social media pages, including but not limited to Facebook and Twitter, which feed into the Sites. You shall not submit or otherwise publish through such social media pages any content which libels, defames or invades privacy, or is obscene, pornographic, abusive, or threatening; infringes any intellectual property or other right of any entity or person, including, but not limited to violating anyone's copyrights or trademarks; violates any law; advocates illegal activity; or advertises or otherwise solicits funds or is a solicitation for goods or services (collectively "Non-Approved Material").
9. Additional Terms
Topgolf may terminate your access to the Sites immediately without notice if, in Topgolf's sole discretion, you fail to comply with any of the terms of this Terms and Conditions Agreement. You may terminate this Terms and Conditions Agreement, immediately without notice to Topgolf, at any time by discontinuing your use of the Sites, and your use of any information you have obtained from the Sites. The paragraphs entitled "Intellectual Property," "Disclaimer of Warranty and Limitation of Liability," "Feedback and Submissions," "Additional Terms," and "Governing Law and Jurisdiction" shall survive termination of this Terms and Conditions Agreement for any reason.
Certain areas within the Sites, may be governed by additional terms and conditions ("Additional Terms") presented in conjunction with those areas. You must agree to these Additional Terms before using those areas. The Additional Terms and this Terms and Conditions Agreement both apply. In the event of an irreconcilable inconsistency between the Additional Terms and this Terms and Conditions Agreement, this Terms and Conditions Agreement control.
10. Privacy and Children's Information
11. Text Messaging Terms and Conditions
Before enrolling in any of Topgolf's text message program(s), please read this Terms and Conditions Agreement carefully, including the mandatory Binding Arbitration Agreement, which requires that disputes are resolved by final and binding arbitration on an individual and not a class?wide or consolidated basis.
Topgolf may offer recurring text messaging programs and occasional one-time or limited-duration text messaging programs. This Terms and Conditions Agreement governs these text message programs.
When you agree to participate in our text messaging programs, you typically agree to receive recurring messages, some of which may be marketing messages, including special offers, alerts, rewards, deals, updates, and reminders and information from Topgolf. However, you may also choose to sign up for other text message programs, for example, regarding specific promotions or events or to confirm your identity before accessing your account. Messages may be in SMS, MMS or RCS format and may contain marketing content. Text messages may be sent using an automatic telephone dialing system, or artificial or pre-recorded voice. Your consent to receive such messages is not required as a condition of purchasing any goods or services. Message and data rates may apply.
Topgolf may transition from one short code or telephone number to another, and you consent to receive messages from the new short code or number.
To opt-in to receive text messages from any of Topgolf's text messaging program(s), please follow the instructions provided by Topgolf, which may include texting a message to a short code, providing your phone number on-site at a Topgolf location or online at our website or through a mobile app, or otherwise providing your consent. You may need to confirm your consent such as by replying "Y" or through another designated response to an initial text message sent to you.
To stop receiving text messages from a specific text messaging program, text "STOP" to the five-digit short code or telephone number for the text messaging program from which you no longer wish to receive messages (i.e., the number from which its text messages are being sent). You may receive one final text message confirming that you have opted out.
To enroll in any of Topgolf's text messaging program(s), you must be the mobile account holder and a resident of the United States. If you change your mobile phone number, you agree to promptly notify Topgolf of that change by contacting our help desk as described in our applications and on our Sites.
If your mobile operator is not participating, you will not receive a reply to your messages. Some operators may not support some services (e.g., pre-paid users may not be able to participate). Check with your carrier to confirm. Topgolf and mobile carriers are not responsible or liable for any undue delays, failure of delivery, or errors in messages.
To request more information, reply "HELP" to the number from which you received our text message(s).
Topgolf may revise, modify, or amend these terms and conditions at any time. Any such revision, modification, or amendment shall take effect when it is posted to our Sites or application(s). You agree to review this Terms and Conditions Agreement periodically to ensure that you are aware of any changes. Your continued consent to receive text messages from Topgolf will indicate your acceptance of those changes. We may also notify you by other means, such as sending a text message to the number you used to sign up for our text message program(s).
12. BINDING ARBITRATION AGREEMENT
As part of this Terms and Conditions Agreement, you and Topgolf each agree as follows (the "Binding Arbitration Agreement").
NOTICE: PLEASE READ THIS SECTION OF THIS TERMS AND CONDITIONS AGREEMENT CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHTS TO TRY CLAIMS IN COURT BEFORE A JUDGE OR JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION.
MANDATORY INFORMATION DISPUTE RESOLUTION: If you or Topgolf have a Claim (defined below), you and Topgolf agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. The party that intends to initiate an arbitration proceeding must first send a notice to the other party that describes the Claim. The notice must include the initiating party's name and contact information (address, telephone number, and email address) and a detailed description of (1) the nature and basis of the Claim and (2) the nature and basis of the relief sought, with a detailed calculation. Your notice shall be sent by mail to Topgolf's registered business agent,
CT Corporation, 1999 Bryant Street, Suite 900, Dallas, Texas, 75201; with a copy to
Topgolf, 8750 North Central Expressway, Suite 1200, Dallas, Texas, 75231, Attention: Legal Department; or by email to: Legal@topgolf.com . You must personally sign the notice. Topgolf's notice to you shall be sent to the most recent contact information we have on file for you. If requested by the party that receives the notice, the other party must personally participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Claim. If the Claim is not resolved within sixty (60) days after receipt of the notice (which period can be extended by agreement of you and us), you or Topgolf may commence an arbitration proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing a demand for arbitration. The statute of limitations and any filing fee deadlines for a formal arbitration proceeding shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party's election, and any arbitration proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
AGREEMENT TO ARBITRATE: If we are unable to resolve a Claim through the mandatory informal dispute resolution process, you and Topgolf agree that, except as set forth below, all Claims between you and us will be resolved entirely through the binding individual arbitration process set forth in this Section. For purposes of this Section, "Topgolf," "we," "our," and "us" include Topgolf and its employees, officers, directors, parents, agents, controlling persons, subsidiaries, affiliates, predecessors, acquired entities, successors, and assigns.
CLAIMS: "Claims" subject to this Section include all of the following: (1) claims relating to or arising out of this Terms and Conditions Agreement or any prior or later versions of this Terms and Conditions Agreement, as well as any changes to this Terms and Conditions Agreement; (2) claims relating to or arising out of any aspect of any relationship between you and us; (3) claims relating to or arising out of your access of, use of, or any transactions through, by, or using the Sites, including receipt of any advertising, marketing, or other communications from Topgolf; and (4) claims relating to the interpretation, scope, applicability, or enforceability of this Terms and Conditions Agreement or this Section except as set forth in Section 12(b), Section 12(k), and Section 12(l). Except as provided below, (X) claims are subject to arbitration whether they are based in contract, tort, federal or state statute, constitution, regulation, or any other legal theory, or whether they seek legal or equitable remedies; (Y) all claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future; and (Z) claims include claims or disputes that arose before the parties entered into this Terms and Conditions Agreement or after termination of this Terms and Conditions Agreement.
CLAIMS NOT COVERED BY ARBITRATION: Claims filed by you or by us in a small claims court are not subject to arbitration, so long as the dispute remains in such court and advances only an individual claim for relief. Claims filed by you or us in court to enjoin infringement or other misuse of intellectual property rights are also not subject to arbitration. Section 12(k) and Section 12(k) set forth additional claims not subject to arbitration.
COMMENCING AN ARBITRATION: Except as set forth Section 12(l), unless the parties agree to select a different arbitration administrator, the arbitration shall be administered by the American Arbitration Association ("AAA") as follows: under AAA's Commercial Rules for commercial disputes and under AAA's Consumer Arbitration Rules for consumers with non-commercial disputes, except as modified by this Section. AAA's rules may be obtained from www.adr.org or 1-800-778-7879 (toll-free). If AAA is for any reason unable to serve and the parties are unable to agree on an alternative arbitration administrator, then a court of competent jurisdiction shall appoint an arbitration administrator. To commence an arbitration proceeding, you or Topgolf must send a personally signed demand for arbitration that describes (1) the nature and basis of the Claim(s), and (2) the nature and basis of the relief sought, including a detailed calculation, along with a certification that you or we are party to this Section and completed the informal dispute resolution process referenced above. Your notice shall be sent by mail to Topgolf's registered business agent,
CT Corporation, 1999 Bryant Street, Suite 900, Dallas, Texas, 75201; with a copy to
Topgolf, 8750 North Central Expressway, Suite 1200, Dallas, Texas, 75231, Attention: Legal Department; or by email to: Legal@topgolf.com . Topgolf's notice shall be sent to the most recent contact information we have on file for you. You or Topgolf must also contact AAA or chosen arbitration administrator and follow its appropriate procedures to commence the arbitration.
- Unless you and we agree otherwise in writing, the arbitration shall be decided by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years of experience, selected in accordance with the chosen arbitration administrator's rules.
- The arbitrator will decide the Claim or Claims in accordance with this Terms and Conditions Agreement and applicable substantive law, including the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA"), and applicable statutes of limitation. The arbitrator shall honor claims of privilege recognized at law. Except as provided in Section 12(k) below, the arbitrator may award damages or other relief (including injunctive relief) available to the individual claimant under applicable law.
- The arbitrator will take reasonable steps to protect proprietary or confidential information. Any arbitration hearing shall take place in the county in which you reside, unless the parties agree in writing to a different location or the arbitrator so orders. If all Claims are for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing in accordance with the arbitration administrator's rules. You and a Topgolf representative shall personally appear (with counsel if you and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
- At your or our request, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's award shall be final and binding except that any party may appeal any award relating to a Claim for more than $100,000 or for injunctive relief to a three-arbitrator panel appointed by the arbitration administrator, which will reconsider de novo any aspect of the appealed award. The panel's decision will be final and binding. In either event, you or we may seek to have the award vacated or confirmed and entered as a judgment in any court having jurisdiction.
ARBITRATION COSTS: Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules as set forth above or, if a different arbitration administrator is selected, its rules. If you are a consumer with a non-commercial dispute, we will pay any filing, administration, or arbitrator fees the arbitration administrator requires you to pay if, in a writing signed by you: (1) you claim to be unable to afford it; and (2) you demonstrate that you sought, but were unable to obtain, a waiver of that fee from the arbitration administrator. To the extent allowed by applicable law and our agreements, the arbitrator may award arbitration costs and attorneys' fees to the prevailing party.
JURY WAIVER AND LIMITATION OF RIGHTS: You and we agree that, by agreeing to arbitrate any Claims, the parties are each waiving the right to a trial by jury or a trial before a judge in court (except for matters that may be taken to a court pursuant to this Section). You and we acknowledge that arbitration will limit our legal rights, including the right to participate in a class action, the right to a jury trial, the right to conduct full discovery, and the right to appeal.
CLASS ACTION AND REPRESENTATIVE ACTION WAIVER: You and we agree that each may bring Claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless mutually agreed to by you and us, the claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration. The arbitrator shall have no authority to conduct any class, private attorney general or other representative proceeding. This Section 12(j) does not apply to requests for public injunctive relief, which are addressed in Section 12(k).
PUBLIC INJUNCTIVE RELIEF WAIVER: Neither you nor we will have the right to seek public injunctive relief as a remedy for any Claim against one another (a "Public Injunctive Relief Request") in arbitration, if such a waiver is permitted by the FAA. If such a waiver is deemed unenforceable, you and we agree that the Public Injunctive Relief Request shall be severed from any other Claims and/or remedies you have. The Public Injunctive Relief Request must be adjudicated by a court after all your other Claims to be decided in arbitration under this Section are resolved in arbitration. The validity, enforceability, and effect of this Section 12(k) shall be determined exclusively by a court, and not by any arbitration administrator or arbitrator.
ADDITIONAL PROCEDURES FOR MASS ARBITRATION:
- If twenty-five (25) or more similar claims of consumers with non-commercial disputes are asserted against Topgolf by the same or coordinated counsel or are otherwise coordinated (and your Claim is one such claim), you understand and agree that the resolution of your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules.
- Counsel for the claimants and counsel for Topgolf shall each select fifteen (15) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the initial bellwether process.
- If the parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings, the parties shall participate in a global mediation session before a retired judge, and Topgolf shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of this staged process.
- If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired judge, and Topgolf shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Topgolf agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims.
- A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator unless the parties agree otherwise. The statute of limitations and any filing fee deadlines shall be tolled for Claims subject to this Section 12(l) from the time the first cases are selected for the initial bellwether process until the time your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have the authority to enforce this paragraph by enjoining the mass filing or prosecution of arbitration demands against Topgolf. Should a court of competent jurisdiction decline to enjoin this Section 12(l), you and we agree that your and our counsel shall engage in good faith discussions with the assistance of an arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
GOVERNING LAW: Notwithstanding any other section in this Terms and Conditions Agreement to the contrary, you and we agree that you and we are participating in transactions that involve interstate commerce and that this Section and any resulting arbitration are governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Notwithstanding any Section in this Terms and Conditions Agreement to the contrary, to the extent state law applies, the laws of Texas without regard to conflicts of law principles shall apply. No state statute pertaining to arbitration shall apply.
SEVERABILITY: Notwithstanding any Section in this Terms and Conditions Agreement to the contrary, if any provision of this Section 12, except for Section 12(j), is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this Section. However, if Section 12(j) is deemed invalid or unenforceable in whole or in part, then this entire Section shall be deemed invalid and unenforceable.
Do not use the Sites or enroll in any of Topgolf's text message programs if you do not agree to the foregoing binding arbitration provisions.
13. No Waiver
No delay or failure by Topgolf to enforce any of these Terms and Conditions Agreement shall constitute a waiver of any of our rights under this Terms and Conditions Agreement. Neither the receipt of any funds by Topgolf nor the reliance of any person on our actions shall be deemed to constitute a waiver of any part of this Terms and Conditions Agreement. Only a specific, written waiver signed by an authorized representative of Topgolf shall have any legal effect.
If any clause or provision set forth in this Terms and Conditions Agreement is determined to be illegal, invalid or unenforceable under present or future law, the clause or provision shall be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions.
Note that the headings contained in this Terms and Condition Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning, construction, or scope of any of the provisions contained in this Terms and Conditions Agreement. The word "including", or any variation thereof means "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. Unless the context demands otherwise, the word "or" shall have the inclusive meaning identified with the phrase "and/or". Any reference made in this Terms and Conditions Agreement to a statute or statutory provision shall include any amendments or successors thereto as in effect at the time the particular provision of this Terms and Conditions Agreement is to be given effect, along with any then-applicable rules or regulations promulgated thereunder.
16. Governing Law and Jurisdiction
The Sites are operated by Topgolf International, Inc., a Delaware corporation. Topgolf makes no representation that the information in the Sites is appropriate or available for use outside of the United States, and access to the Sites from territories where the content of the Sites may be illegal is prohibited. If you access the Sites from outside the United States, be advised the Sites may contain references to products and services that are not available or are prohibited in your country. Those who choose to access the Sites from outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. This Terms and Conditions Agreement and all policies and documents incorporated herein by reference constitute the entire agreement between Topgolf and you with respect to the subject matter herein.
This English-language Terms and Conditions Agreement is Topgolf's official agreement with users of the Sites. In case of any inconsistency between this English-language Terms and Conditions Agreement and its translation into another language, this English-language document shall control.
17. Forward-looking Statements
Statements contained on the Sites regarding Topgolf's business which are not historical facts are "forward-looking statements" that are based upon information and expectations at the time they were first made or posted. Actual results may differ materially as a result of certain risks and uncertainties. For details concerning these and other risks and uncertainties see "Management's Discussion and Analysis of Financial Condition and Results of Operations" contained in Topgolf Callaway Brands Corp.'s most recent financial report (e.g., 10-K or 10-Q) filed with the Securities and Exchange Commission. Readers are cautioned not to place undue reliance on such statements which speak only as of the date first made or posted. The Company undertakes no obligation to republish revised forward-looking statements to reflect the occurrence of unanticipated events or circumstances that effect such statements.
18. For More Information
If you have any questions regarding our Terms and Conditions Agreement, please contact us by sending an email to firstname.lastname@example.org or writing to us at
Topgolf International, Inc.,8750 N. Central Expressway (Suite 1200), Dallas, TX 75231, ATTN: Marketing Resources.
Updated: November 9, 2023